Another One Bites the Dust

The cognoscenti have been telling me that the Supreme Court won't officially decide whether or not to take a DOMA case until after the election, lest they influence our voting one way or another. But today we got yet another clue that they will have to—and which way they will almost certainly decide.

That's because today the Second Circuit Court of Appeals announced that it finds DOMA Section 3 unconstitutional, in yet another decision written by a conservative Republican-appointed judge, as was true in the Massachusetts cases decided by the First Circuit.

The case: Edie Windsor, a widow who had been with her wife for 40 years—legally married, of course, only for a few years at the end—was suing the federal government for taxing her wife's estate as if they were legal strangers. A New York federal trial court judge decided summarily that was unconstitutional nonsense—as has every federal court that's heard such a case, in now ten opinions. The Second Circuit today upheld that, saying that such a federal denial of recognition violates our right to equal protection under the laws.

You remember DOMA, dear reader, but let's examine it nevertheless. We are most decidedly not discussing Perry, the Boies & Olsen extravangaza that challenges California's voters' ability to change the constitution to undo a California Supreme Court decision that ruled same-sex couples could marry in that state. That's a freedom-to-marry case, not an equal protection case; its constitutional issues are quite different.

In Windsor, rather, the Second Circuit Court of Appeals has ruled on Section 3 of the 1996 Defense of Marriage Act, the portion that says the federal government will not recognize a same-sex marriage. All the LGBT legal groups have taken surgical aim at Section 3, because the states, historically, have had control over marriage law. States decide who can marry and what the terms of that marriage are. Traditionally, the federal government only had the power to assign federal obligations, rights, and regulations based on your state-made marital status. If Colorado says you're married, you can check the "married" box on your federal tax returns, just as if Tennessee says you're married. But when New York said that Edie Windsor was married, DOMA section 3 forced the IRS to say, oh no you're not. As a result, the adorable 81-year-old widow was slapped with a $363,000 tax bill on what had been her shared property for her entire adult life.

The Second Circuit took all of three weeks to issue its decision. Maybe they're trying to get their say in before the Supremes decide whether or not to take the case, to let the top court know that every federal judge thinks this is a slam dunk; maybe they just think that the legal issues are pretty straightforward. The First Circuit decided this roughly the same way, with some nuanced differences in the reasoning. So have four trial court judges (variously, in Golinski, Gill, Pedersen, and Windsor). That means Paul Clement, lead lawyer for the Bipartisan Legal Advisory Group for the House of Representatives, which has been charged with defending DOMA (since the Justice Department decided that it couldn't in good conscience do so because DOMA is unconstitutional), is now 0 for 6. And as ThinkProgress notes, BLAG has now spent about $1.5 million of what Republicans like to remind you is your money—i.e., your taxes—defending this law.

Extra good news in this opinion: the conservative Republican-appointed judge who wrote the majority opinion declares that laws relating to sexual orientation deserves heightened scrutiny, i.e., a really really extra important reason, or they must be considered discriminatory. Scottie Thomaston at Prop 8 Trial Tracker has an analysis here.

So why does SCOTUS have to take this? Two federal circuit courts have now ruled a federal law unconstitutional. That's pretty much an automatic promotion to SCOTUS hearing, according to the constitutional lawyers. I wrote more about it at The Advocate, if you want more background, although some of the predictions about timing have now been "overtaken by events," as we say in the biz.

But I stand by this: by late June, I will be married not just in Massachusetts, but also in the United States. I'll file both sets of taxes as married. My wife will no longer be taxed for listing me on her health insurance. We might not yet be treated as legally married in every state—that will take a few more years—but that too is on the way.

About the Author

E.J. Graff writes on social-justice and human-rights issues, particularly discrimination and violence against women and children; marriage and family policy; and lesbian, gay, bisexual, and transgender lives. She is a resident scholar at the Brandeis Women's Studies Research Center and the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution (Beacon Press, 1999, 2004).